IMPORTANT TRANSACTION INFORMATION
The information in this Call for Offers (“CFO”) is provided for background purposes only. While every effort has been made to ensure the accuracy of the information contained in this CFO, it is not, and shall not be construed to be or constitute, a representation, warranty, or guaranty by RACER Trust regarding the content, completeness, or accuracy of such information, or the qualifications or expertise of the individual(s) or firm(s) providing or preparing such information. Each prospective buyer is therefore advised and encouraged to undertake its own due diligence to satisfy itself as to matters associated with the Property, provided however, in no event shall a prospective buyer or the selected Buyer or any of their respective agents or contractors make any physical inspection or perform any invasive testing of the Property, without the prior written consent of RACER Trust.
RACER Trust instructs and expects each prospective buyer, if such prospective buyer wishes to submit and offer, to do so in the form of a Letter of Intent, as such term is described below.
Each party submitting an offer shall rely solely on its own inspection, investigation, confirmation, and analysis of: (1) the Property; (2) the information contained in or delivered pursuant to this CFO; and (3) any other information that such party deems necessary or prudent in evaluating and analyzing the proposed purchase and development of the Property.
This CFO is not a legally-binding document, but rather is an invitation to submit offers on the terms and conditions described and set forth in this CFO. RACER Trust shall be under any obligation unless and until: (1) RACER Trust and the selected Buyer enter legally binding agreements to effectuate a purchase and sale of the Property; and (2) a project agreement between the selected Buyer and the Community, as applicable. In no event shall RACER Trust be responsible for any costs, expenses and fees incurred by or on behalf of any prospective buyer with respect in any way to this CFO. Each prospective buyer shall be solely responsible for its own costs, expenses, and fees relating in any way to this CFO.
RACER Trust is currently the legal titleholder of the Property, and intends to convey it to the selected Buyer pursuant to a purchase and sale agreement within a timeframe specified by RACER Trust.
RACER Trust makes no warranties as to the location, capacity, and condition of the utilities or the utility infrastructure serving the property. Any replacements, repairs, modifications, or upgrades to existing utility services or installation of new equipment or facilities (both on and off the Property) will be the sole responsibility of the selected Buyer.
RACER Trust reserves and may exercise any one or more of the following rights and options with respect to its process of selecting a Buyer, without any notice to any prospective buyer:
- Request one or more of the prospective buyers to provide additional material, clarification, confirmation, or modification of any information in its offer.
- Supplement, amend, substitute, or otherwise modify this CFO any time prior to selection of the buyers for negotiation, and to cancel this CFO with or without issuing another CFO.
- Request that one or more of the prospective buyers supplement its or their offer based on the review of all offers received by RACER Trust.
- Negotiate with one or more of the prospective buyers concerning any aspect of the offers, including but not limited to the purchase price for the Property.
- Terminate any negotiations at any time.
- Consider any and all factors RACER Trust has in its possession when deciding to accept or reject an offer.
- Accept or reject or not consider at all in whole or part any and all offers and/or to withdraw the CFO without notice for any reason (or for no reason) whatsover.
- Accept the offer that RACER Trust in its sole discretion determines to be in its best interest and most advantageous to RACER Trust and/or the Community.
- Expressly waive any defect, irregularity, or technicality in any offer.
- A prospective buyer’s misrepresentations, found to be negligent or intentional by RACER Trust in its sole discretion, will be grounds for rejection by RACER Trust of all offers from such prospective buyer.
This submission is made subject to prior sale, change in price or terms, or withdrawal without notice.
Prospective buyers should not construe this information as legal or tax advice. Each prospective buyer should consult with its respective legal counsel, accountant, engineer, architect, planner, or other advisors on matters related to this CFO.
Following are some of the general terms of the Property’s anticipated sale:
- The selected Buyer will acquire the property as-is, with limited warranties and representations by RACER Trust.
- RACER Trust will retain responsibility and post-closing right of access for completing its environmental activities at the Property, subject to the scope, terms and funding of the Settlement Agreement which established RACER Trust.
- The execution of a mutually agreeable, enforceable and binding project or development agreement between the selected Buyer and the Community will be a condition of closing.
- Although RACER Trust will obtain input from the Community regarding the choice of the Buyer, RACER Trust in its sole discretion will choose the Buyer of the Property, or choose no buyer.
- RACER Trust, in its sole discretion, will determine whether each prospective Buyer’s offer satisfies the criteria that RACER Trust must consider in the sale or lease of RACER Trust real properties.
Prospective buyers are hereby directed to review RACER Trust’s combined Letter of Intent (“LOI”) and Purchase and Sale Agreement (“PSA,” including Environmental Easement Agreement) for detailed terms and conditions.
By submitting an offer in response to this CFO, each prospective buyer represents that it has read all of the documents referenced in the CFO (as attached thereto or linked to RACER Trust’s website), including but not limited to the Settlement Agreement, and understands that its failure to familiarize itself with these documents shall not relieve it from performing in accordance with this CFO.
WAIVER AND OBJECTIONS
By submitting an offer in response to this CFO, a prospective Buyer waives all objections and agrees to be bound by this CFO and unconditionally and irrevocably waives any objections to the following:
- The CFO and CFO process as set forth in or contemplated by this CFO.
- The requirements or other provisions of this CFO, including without limitation the submission requirements, the offer evaluation criteria and the selection process.
- The means and methods by which the CFO and CFO process have been carried out.
Since the March 31, 2011, Effective Date of RACER Trust, its Redevelopment Manager, Deputy Redevelopment Manager, and Transaction Manager (each an employee of RACER Trust and collectively RACER’s “Redevelopment Team”) have and will continue to self-perform all of the brokerage activities required for the sale of RACER Trust real properties, including but not limited to: promoting, advertising, marketing, generating leads , vetting prospects, conducting property tours, conducting negotiations, preparating transaction documents, managing buyer due diligence, closing, etc.
Given RACER Trust’s in-house capabilities, its dual cleanup and redevelopment mission, and the sale criteria requirements of the Settlement Agreement, RACER Trust will not give an exclusive, full listing for the sale of RACER Property to any broker. However, RACER Trust may in its sole discretion enter a single-buyer seller commission agreement with a broker, provided the broker can demonstrate all the following:
- The broker has a current assignment (for a specific requirement) from the buyer which is evidenced by a fully-executed engagement agreement between the buyer and the broker and that agreement is presented to RACER Trust prior to an introduction of the buyer to RACER Trust, and
- RACER Trust has not already been previously contacted by the buyer or parties representing the buyer, and
- The broker is duly-licensed in good standing and in compliance with all applicable state licensing requirements and provides RACER Trust with evidence to document same.
The single-buyer seller commission agreement must be executed by both RACER Trust and the broker in advance of any communications by RACER Trust with the buyer or parties representing the buyer.
RACER Trust in its sole discretion determines whether: (1) it will enter into a commission agreement with a broker; (2) the buyer satisfies all the criteria that the RACER Trust must consider for the sale of its real property as stipulated in the Settlement Agreement; (3) to accept or reject any offers; (4) to terminate under its rights in a contract for the sale of RACER Trust real property with a buyer; and (5) to provide a letter to a broker indicating that RACER Trust is not willing to pay a seller’s commission.
The commission under such agreement shall be paid only after closing.